Monday, October 30, 2006

A "Technicality"

When asked about Mike Nifong obtaining indictments by ordering the police to violate their own procedures in conducting a lineup, CBS legal analyst Mickey Sherman recently stated, “Given the polarization of the community down there and the racial issue, [the case is] not going to get thrown out on this type of technicality.”

Susan Estrich has a healthier respect for procedures: “There are reasons,” she wrote about the case, “you follow procedures. In general, they are there to spare outrage.”

This case is particularly unusual in that a direct relationship exists between Nifong’s procedural violations and flawed outcomes: in effect, the case was constructed upon tissue of procedural irregularities. Had Nifong followed even one of the North Carolina State Bar’s Rules of Professional Conduct outlined below, he could not have brought charges.

1.) Rule 3.3a(1): A lawyer must not “make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.”

Nifong started his involvement in the case—on March 23-4, when his office filed a motion demanding that the 46 white players on the team submit DNA and photo samples—by violating this rule. It is now clear that this motion was fraudulent in three ways:

Nifong claimed that the players called each other by first-name aliases and uniform numbers at the party; he had no evidence for either claim, and, indeed, no evidence for either claim exists now.

Nifong withheld from the court that the accuser had failed to identify any suspects in an official photo lineup, conducted in two parts on March 16 and March 21.

Nifong, it turned out, falsely promised the court that negative DNA tests would “immediately rule out any innocent persons.”

The effect of this procedural violation: without the results of the court order, Nifong would have no case.

Flawed procedures beget flawed results.

2.) Rule 3.8(f): Prosecutors must “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”

Even the district attorney’s defenders in the state NAACP have conceded that he violated this rule. Some of Nifong’s more outrageous statements:

“One would wonder why one needs an attorney if one was not charged and had not done anything wrong”;

Deeming all the players “hooligans”;

Claiming--“to my knowledge”--that he did not know Kim Roberts had made both 911 calls, thereby creating a false impression of a racist atmosphere throughout the party.

The effect of this procedural violation: had he not made these remarks, Nifong might have had the political freedom to back down following the negative DNA tests—though it’s worth remembering that he had almost $30,000 of his own money riding on the DNA results.

Flawed procedures beget flawed results.

3.) Rule 3.8, comment 1: Prosecutors have “specific obligations to see that the defendant is accorded procedural justice.”

It’s impossible to reconcile this rule with Nifong explicitly ordering police to violate their own procedures for the April 4 lineup:

Nifong said lineup would be confined only to suspects, the lacrosse players, despite Durham procedures requiring five fillers per suspect.

Nifong allowed Gottlieb to run the array, despite Durham procedures requiring a neutral officer rather than the lead investigator to run the array.

Despite Durham procedures requiring telling the accuser that the suspects might or might not be in the array, the accuser would be told that the array was confined to suspects.

The results of this procedural monstrosity, quite apart from the selection of the three accused players:

The accuser positively identifying one person who wasn’t even in Durham that night as attending the party.

The accuser positively identifying another person who could prove he was not at the party.

The accuser incorrectly identifying the person who made the broomstick comment.

The accuser not recognizing three people she was 100% certain of having seen at the party on March 16.

The accuser claiming to recognize nearly a dozen players that she said she didn’t see at the party during the March 16 session.

The effect of this procedural violation: without it, Nifong had no way of identifying the three people he ultimately charged.

Corrupted procedures beget corrupted results.

4.) Rule 3.8, comment 2: “A prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor’s case or aid the accused.”

Nifong violated this rule at least twice:

when, in his capacity as case lead investigator, he refused to ask or have police ask Kim Roberts about discrepancies between her statement and that of the accuser*;

when, in his capacity as district attorney, he refused to meet with Kirk Osborn to consider evidence that Reade Seligmann could not have committed the crime with which Nifong charged him.

The effect of this procedural violation:

in the first instance, central elements of accuser’s story would have been contradicted, requiring Nifong to present these contradictions to the grand jury;

in the second instance, Nifong would have had to dismiss charges against Seligmann, an outcome that would have set in motion the dismissal of all charges, because Collin Finnerty and Dave Evans were charged according to the same procedurally flawed lineup.

Flawed procedures beget flawed results.

5.) Rule 3.8, comment 1: “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate; the prosecutor’s duty is to seek justice, not merely to convict.”

It is very difficult to reconcile this rule with Nifong’s statement to Newsweek that no facts that have emerged since he first expressed his opinion (March 27) have affected his opinion about the case.

Compare the evidence he had before March 27 with what emerged after that date—the evidence Nifong deemed irrelevant.

Pre-3/27:

various police reports of early interviews with the accuser, where she offered at least five different versions of events, most of which were mutually contradictory;

the accuser’s failure to identify her attackers when shown photos of the lacrosse players, coupled with descriptions of the attackers that bore no resemblance to at least two of the three people she ultimately picked;

Roberts’ statement, which contradicted the accuser’s in almost every way, and a telephone interview with Roberts in which she labeled the accuser’s allegations a “crock”;

the statement of the neighbor, who described a loud and alcohol-filled party but also placed the comings and goings of the dancers in such a way to limit the window in which a possible crime could have occurred;

the statements of the three lacrosse captains, along with their (spurned) offer to submit to lie detector tests by the police.

Post-3/27:

time-stamped photographs of accuser at the party, which showed what time her dance concluded and when she left the premises;

the statement of the person generally described as accuser’s “driver,” which discussed accuser’s various pre-party “appointments” and outlined her erratic behavior on the day of the party;

two rounds of DNA tests, which contained no matches to two of the accused players and a match to the third on a towel in his own house; and no matches between any lacrosse player and the accuser;

the accuser’s cellphone records, which included a 12.26 call to another escort service and an 11.36-11.39 call before she arrived at the party;

two medical reports, one from Duke, which “made no mention of bruises, tears or abrasion to either the vagina or the anus, [and] . . . noted a scratched heel, and no other signs of physical assault”; the other, the next day, from UNC: “[Accuser] states she was drunk and had a lot of alcohol that night”

the accuser’s own statement(!), dated April 6;

the Seligmann alibi, which included cellphone records, two affidavits, and an ATM video showing Seligmann was either on the phone, in a cab, or at an ATM machine a mile away during the only time block in which a rape could have occurred.

the procedurally flawed April 4 lineup.

Can anyone seriously maintain that the pre-March 27 evidence is more significant than its post-March 27 counterpart—much less that the pre-March 27 evidence so conclusively proved that a rape occurred that the post-March 27 material can be disregarded?

Flawed procedures beget flawed results.

---------

We’re now at a stage, to paraphrase Samuel Johnson, where the call of “wait-for-the-trial” is the last refuge of scoundrels, though advocates of this position are advancing different arguments:

Herald-Sun editor Bob Ashley demands a trial so as to bring closure to the community, while Duke professor and Group of 88 member Grant Farred yesterday demanded a trial as a step against racism. Neither seem to have noticed that using the criminal justice system for political trials went out of fashion when the Berlin Wall came tumbling down.

The NAACP and Duke professor Orin Starn have argued that the accuser has a right to a fair trial. This novel assertion overlooks 220 years of American constitutional theory, which holds that the defendant, not the accuser, has a right to a fair trial.

This claim that the “system” requires a jury to decide a procedurally tainted case represents an upside-down view of the “system,” to which Duke Law professor James Coleman has offered the best response: “If the case goes to trial, it should be based on the strength of the evidence against the defendants, rather than as a convenient way to shift responsibility for ending what now appears to be a highly questionable prosecution to a judge or jury.”

Flawed procedures beget flawed results. Corrupted procedures beget corrupted results. And anyone who believes that the flawed and corrupted procedures that have marred this case will suddenly become pristine once a trial starts is either willfully naïve or outrageously duplicitous.

[This post is a slightly lengthier version of my presentation at last week’s ACLU@DUKE Town Hall forum. My thanks again to ACLU@DUKE president Daniel Bowes for arranging and moderating the panel.]

[*--Update, 8.52am: This morning's Good Morning America featured a lengthy interview with Roberts in which she asserted that the accuser told her, after the attack, "Go ahead, put marks on me." When asked why his client hadn't shared that information with authorities, Roberts' attorney responded they didn't ask: "She's never met with the [district attorney] and has never been called back for a follow-up interview." Also see the comments section for a thoughtful critique of my comments on Rule 3.3(a)1, which I agree is the weakest portion of the post, and my response.]

45 comments:

Gotta say, as powerful as this is in written form, I'm really glad to have been able to hear it for myself. The refrain of "Flawed procedures beget flawed results," capping off each of the ways this process has been damaged through either the ignorance or the arrogance of this DA, is a perfect summary of the case. - Michael

Lis Wiehl married defense attorney Michael (Mickey) Sherman on 23rd June, 2006 in Old Greenwich, CT. Mickey Sherman is best known for losing the Michael Skakel murder case.

Wiehl was deputy chief counsel for the Democrats on the House Judiciary Committee during the impeachment hearings against President Bill Clinton. She is a Clintonista and she is on TV to promote a viewpoint. On Fox Saturday night she said it was a good idea for Nifong to not talk to the accuser & even said it was the Defense who was stalling the trial.

She is not stupid. Harvard Law and she has been a Law professor at two different schools, U of W & the New York School of Law. She is intentionally spreading propaganda.

Unfortunately, modifying the subject (procedures) with the adjectives of "flawed" and "corrupted" is saying that the PROCEDURES are flawed or corrupted first, and that follwing them results in flawed and corrupted results. Nifong did not "flaw" or "corrupt" the procedures. The procedures are not the object of a verb in these statements.

KC has stated that the procedures were already "in error" or "illegitimate" before Nifong ever disregarded them. In effect, KC has, therefore, argued that the results are the fault of the procedures, not Nifong.

I realize, of course, that this is not what he intended, but that is exactly what he has stated. He has made a beautifully logical, not to mention powerful and reasoned, argument for Nifong's corruption and violation of the procedures as they are quoted in his piece. It is unfortunate that in the one-liner summary statements that sound so good, he has stated that the procedures, themselves, were flawed and corrupted and that this is the reason the results are, as well.

To 1:56 AM - Wiehl is simply Fox's "balance" and is just one of the liberal left that has to make sure that privileged white boys are guilty and made to pay for all crimes against blacks throughout American history.

Fox generally has enough ammunition to offset those who are obviously attempting to play on viewers' ignorance, which is what most of these brilliant leftists make their living doing.

And, it is a good idea for Nifong to not talk to the AV, or at least continue in what most suspect is a lie to that effect. His only hope of getting out of this is for the AV to be declared mentally unstable, Nifong claiming he had no idea and letting his underlings take the fall for evidentiary issues. He wins the election, gets a slap-on-the-hand censure from the bar, and goes on to be the DA for four more years to then retire with full pension and write a book about it all. Three young men's lives are ruined, but oh well...it's all part of the game, I guess.

I know tv outlets like to get people who will argue both sides of a issue. But I got to wonder how smart it is for people like Lis Wiehl to continue to spew the Nifong line of this story. When this case is over and the boys are cleared. People will remember Lis and others as the idiots that supported Nifong's persecution of clearly innocent young men. It seems to me they are damaging their credibility and don't seem to mind.

By the way, I do realize that KC means the procedures that were followed in the specific actions taken by Nifong. However, within the context of this piece, I am simply stating that the summary statement does not make it clear that the procedures he is referencing are those actually taken by Nifong (called "procedure violations" in the piece) and not those that should be followed as a result of the Rules he cites.

"It seems to me they are damaging their credibility and don't seem to mind."

Nah, no damage since no one ever challenges them on it after the fact. It is conveniently forgotten, just like most major media and the Group of 88 have been silent since it has become obvious that the AV is a liar and Nifong is complicit in pursuing the case. The black community will never openly admit that AV lied, even if SHE admits it. She will have been pshycologically irresponsible for her actions (and it was, of course, the white Duke Lacrosse players' fault so there is still fodder for all the racial issues that can be used by leftist politicians and talking heads).

And, yeah, they don't mind at all making fools of themselves, because they have promoted their agenda and scored points with the black voters on behalf of the democrats. If they care at all, and if anyone challenges them, they'll simply Clintonize that away, too.

I’ve browsed this blog for a while, but this is my first comment. I don’t approve of the way the DA has handled this case and think you are doing an excellent job here. But with that said, I respectfully disagree with your analysis of Rule 3.3(a)(1) of the North Carolina Rules of Professional Conduct.

To start, I think your recital of the rule is misleading. You wrote, “Rule 3.3a(1): A lawyer must not ‘make a false statement of material fact or law to a tribunal . . . .’” In paraphrasing the beginning of the rule you left out a crucial qualifier. The rule actually says, “(a) A lawyer shall not *knowingly*: (1) make a false statement of material fact or law to a tribunal . . . .” http://www.aoc.state.nc.us/www/public/aoc/barrules.html (emphasis added) The word “knowingly” is a legal term of art that requires a fairly high degree of mental culpability. For an attorney to violate the rule, he or she must generally know with certainty that he or she is making a false statement of material fact. While “knowingly” also covers willful ignorance in certain contexts, the circumstances have to be much more extreme than they are here.

Moreover, the official commentary to Rule 3.3(a)(1) states “[A]n advocate does not vouch for the evidence submitted in a cause; the tribunal is responsible for assessing its probative value. . . . An advocate is responsible for pleadings and other documents prepared for litigation, but is usually not required to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client's behalf, and not assertions by the lawyer. . . . However, an assertion purporting to be on the lawyer's own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry.” Applying the rule to the facts you presented, I don’t think there’s a violation here.

Starting with the easiest case, you stated that Nifong “falsely promised the court that negative DNA tests would ‘immediately rule out any innocent persons.’” Nifong’s statement is a forward looking conclusion about the evidence, but it’s not what a court would generally consider a statement of “material fact.” Lawyers have a certain amount of leeway to make blustery statements and bold conclusions. And if those conclusions turn out to be wrong, they’re allowed to backtrack and argue in a totally different direction. Nifong’s statement about the DNA tests falls pretty squarely in that zone.

You also stated, “Nifong claimed that the players called each other by first-name aliases and uniform numbers at the party; he had no evidence for either claim, and, indeed, no evidence for either claim exists now.” That’s not really true. Nifong’s evidence of fake names is the accuser’s statement that her attackers called each other X, Y, and Z, coupled with the accuser’s identification of players named A, B and C. Viewing the evidence in the light most favorable to the prosecution, it’s possible to conclude that false names were used. That’s enough for purposes of the rule. Since Nifong had also seen email traffic where the lacrosse players identified themselves by number, he’s probably in the clear there too. (It’s also possible that the police asked about any nicknames attendees used at the party when they where first interviewing the captains. Given what we know about the captain’s early cooperation, I suspect they would have willingly offered up the jersey number thing.)

Finally, you stated that “Nifong withheld from the court that the accuser had failed to identify any suspects in an official photo lineup, conducted in two parts on March 16 and March 21.” The issue isn’t whether Nifong affirmatively misstated a material fact, but whether he violated the rule by omitting the negative results from the earlier lineup. In this situation, I think the text of Rule 3.3(a)(*1*) needs to be read in context with Rule 3.3(a)(*2*). The Rule states, “(a) A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal; [OR] (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; . . . .” If 3.3(a)(1) applied to omissions of material facts, Rule 3.3(a)(2) wouldn’t be necessary; omissions would already be covered. Instead, the drafters of the rule decided that omissions and misstatements should be governed by different standards. Under these standards lawyers are free to omit facts at will, so long as they don’t *know* for certain that those omissions will assist “a criminal or fraudulent act by the client.” Here, Nifong was trying to get a warrant for DNA testing that he believed, at the time, would clear the innocent and definitively identify the guilty. In that context, it would be a stretch to argue that Nifong was assisting in the perpetration of what he knew with certainty to be a fraud. This interpretation is supported by the official commentary to Rule 3.3, which notes that “[o]rdinarily, an advocate has the limited responsibility of presenting one side of the matter that a tribunal should consider in reaching a decision; the conflicting position is expected to be presented by the opposing party.” However, in a one-sided proceeding like that in which Nifong secured the DNA warrant, the issue is a little trickier. In such proceedings, the official commentary cautions that “the lawyer for the represented party has the correlative duty to make disclosures of material facts known to the lawyer that the lawyer *reasonably believes* are *necessary* to an informed decision.” (emphasis added) I think Nifong could easily argue that the failed lineups were immaterial. Given that the stated purpose of the DNA tests was to identify the unknown assailants, it wasn’t really “necessary” or material for the tribunal to know about every unsuccessful effort the prosecution had at securing an ID to date. If anything, the failed lineups seem like they would bolster Nifong’s case as to the necessity for DNA testing. I think that’s more than enough for Nifong to establish a “reasonable belief.”

Anyway, I wrote all of this is because I think your 3.3(a) analysis runs the risk of obscuring the real abuses at the heart of this debacle. Just my two cents. Thanks again for the great coverage.

"Nifong’s evidence of fake names is the accuser’s statement that her attackers called each other X, Y, and Z, coupled with the accuser’s identification of players named A, B and C. Viewing the evidence in the light most favorable to the prosecution, it’s possible to conclude that false names were used."

Actually, the accuser's statement was that attackers were named x,y and z but her identiifaction was of players named x,a,b and c. Considering that this coupling you refer to as evidence to support the fake name theory it should be noted that the coupling did not occur until two weeks after the theory was put forth. The theory was put forth immediately after the second id attempt failed and had, at the time, no basis other than the fact that the accuser failed to id anyone including those named x, y and z.

Good catch. I had my dates confused. But I suspect there's still sufficient evidence to support the false names theory. We knew pretty early on that a false name was used to book the girls. I don't think it would take too much more than that.

Roberts: "And clear as a bell, it's the only thing I heard clear as a bell out of her was, she said — she pretty much had her head down, but she said plain as day — 'Go ahead put marks on me. That's what I want, go ahead.' ''

The pervasive sense of unease about the Duke lacrosse affair remains. If only initially, the players and the university’s administration wanted the entire event to remain a secret That was impossible because it is the very nature of secrets to reveal themselves.

*****The players were cooperative from the beginning. What evidence is there that they "wanted the event to remain secret?" Misleading.

And the lacrosse affair came burdened with a public history. A history that includes the sexual past of the alleged victim as well as the criminal record of the Duke players – from the arrest and prosecution of lacrosse players from Washington D.C., to Durham to the lacrosse team’s reputed tendency toward arrogant sexual prowess. These proclivities are complicated by the neglected issue, that of ongoing racism in the not-so-New South.

*****Notice "sexual past" only is used toward the alleged victim, not "criminal" past. She actually is the convicted felon. You make this Lacrosse team sound like the Bloods or Crips with verbiage that suggests a national wide crime spree. "Arrogant sexual prowess"...can you justify with some facts?...and the use of the adjective "arrogant"...can you substaniate in regard to THESE THREE BOYS... do you just like it? Uh-oh,you leave subject of crimes leveled against boys to obfuscate on volatile racial topics. What a dodge.

The racist taunts by the lacrosse players on that infamous March night were nothing historically new. The vulnerability of black bodies now assumes a different guise, but its political realities remain unchanged, especially in this instance, as it applies to black and minority women. That is only a public secret, but an ongoing shame.

******Kim Roberts admitted she made the first "racist taunt." Author ignores. Kim Roberts admits NONE of the three Accused used any racial taunts. Note hyperbole, about" black bodies" Three white bodies may spent 30 years in jail for a crime they did not DO. DUH!

Why have the racial slurs and a player’s e-mail “promise” about killing and skinning “strippers b—s” been forgotten, and transgressions against Durhamites made victim to the relentless commitment to exonerating the three players? In casting the players as the aggrieved “victims,” as CBS’ “60 Minutes” did and the players, their attorneys and the PR machines continue to insist, what has been eliminated from discussion is a more serious issue. How is the lacrosse affair symptomatic of the political culture at Duke?

******Because the accused made no racial slurs. And you don't go to prison for thirty years, Mr. Crybaby, because your friend responded to a slur with a slur. Get some sense of balance please. That "skinning Strippers" E-mail is from a book STILL taught at Duke in the English department. Take your gripes to the Head of the English Dept.where evidentally you are employed. Oh, no! Hold everything.!.The "more serious" issue is "political culture at Duke?" Than a false conviction for rape? What planet do you live on?!

Why is there not a more urgent sense on the university campus about March 200^? Why has it not precipitated a more profound educational, political, and intellectual crisis? If the gravity of the situation did register, how is it possible that the team could be reinstated despite its criminal history? How could an athletic director’s response to the affair suggest that this was simply a matter of “boys being boys,” by which he really means that historic white privilege should go unimpeded, and perhaps even punished?

******What criminal history? Mr. Hyperbole, get a grip on yourself! Does "White privilege" mean spending 30 years in jail for something you didn't do? This is ALL about your agenda , isn't it?

This tendency is made all the more troubling by a recent political campaign on the Duke campus. Mobilized through the proliferation of Blue Devil blue armbands, too visible on campus early in the fall semester, inscribed with the numbers of the three indicted players and the defiant proclamation, “Innocent” (in bold white), Duke University students are now said to be registering to vote in Durham in unprecedented numbers.

******You"re offended by armbands?

By transferring their registration from other places, by enfranchising themselves in Durham, these students’ only intention is to oust District Attorney Mike Nifong. This selective intervention amounts to nothing so much as the deliberate act of closing ranks against Durham. What Duke students becoming Durham citizens does is displace the problem of racism from the lacrosse team and the university to Durham’s political system.

******Ousting a corrupt Prosecutor is "closing ranks against Durham.?" Duke students are importing racism to Durham? You think a lot of your student body, don't you, Mr. Professor?

This is a historically ironic move, this drive to register “locally,” because Duke students are notorious in their disconnect from the “black” city of Durham. They ate here exercising their right to the franchise without any other sense of civic responsibility. The plan here is to not act in Durham or for the general good of Durham, but to act against the non-Duke Durham community. Can this intervention be motivated by anything other than naked self-interest?

******You don't think it is in the "general good" of Durham to remove a corrupt prosecutor who indicts before investigation? Prof. Coleman might disagree. Will you applaud that tactic WHEN, not IF... it is used against minorities in the future? Or do you believe in two systems of justice..based on race (such "Old South" thinking...you surprise me)) What is your "naked self-interest?'

The goal of these new, expedient and transient members of Durham’s political community is to repair the damage done to historic white male privilege by voting against a DA vigorous, perhaps even questionable, in his efforts to prosecute the “innocent.”

******We see the charged "buzz words." "Historic white male privilege" is a trump phrase....to shut down any dispute. It's to induce guilt to stifle debate. Won't work. If he's "questionable" , why shouldn't they vote against him? You prefer a "questionable" D./A.? Lord have mercy!

The “Innocent” campaign may be motivated by a keenly felt opposition to Nifong’s handling of the case, but it does little more than obscure what is really at stake. Why is the effort to remove Nifong from office not accompanied by a similar vigorous interrogation of those who spewed racial epithets? Why not a “No Racism” or “No Violence Against Women” armband?

*****What is" at stake". oh, deluded one, is the LIVES of three young men who may go to jail on a false charge. Listen to yourself! You want your agendas to trump that NOW. Get a priority will you? If this were your son, I think you would prefer to see me wearing an "Innocent" armband than one touting "Save the Whales." You sound like quite the whiner!

All of which, of course, begs the crucial question: What is it precisely that these three players, and the lacrosse team in general, are “innocent” of? Racism? Underage drinking? Hiring sex workers under a false name? Homophobia? The abdication of a collective team – what happened was not a “mistake” but part of an older and widely known pattern of lacrosse behavior – and larger institutional responsibility for declaring public what precisely it is that Duke University represents?

*******Do you READ? They are innocent of rape, kidnapping, assault..all that they are charged with. INNOCENT, you idiot! None of the "charges" you level carry thirty years in jail! They can and should be addressed but not till these boys are free! When a couple is carjacked by a violent criminal, they don't usually choose that occasion to thrash out martial problems, even crucial ones. Get my point? And are you implying these three boys should spend their lives in jail..because dolts like you are offended by "lacrosse behavior." I'm offended by your behavior in writing this!

The question needs to be answered. What does Duke stand against? At this moment, Duke university’s precise mission as a renowned institution of higher learning, one that touts its elevated international rankings, is the best kept secret in town.

*******What do YOU stand for? Convicting the innocent? The best kept secret in town is how Duke university has managed to degrade itself with professors who write such drivel as this! Duke parents, this writer is teaching and influencing your child for your $40,000 a year.

KC,I want to know exactly how many times the accuser has been interviewed by Durham officials. If Nifong never discussed the alleged rape with her, when did the DPD discuss it with her? To my knowledge, the only times she was interviewed were:1. At Duke hospital on Mar. 13/142. When she provided a written statement at DPD when she went to retrieve her property3. When Gottlieb/Hinman interviewed her and she abulated in painThese were all before the first indictments. When additional evidence surfaced, it appears she was never interviewed again. Correct?I think that Nifong believed a rape occurred because Duke hospital found seminal fulid in her and he assumed it was from the rape since she said she hadn't had sex in a week. Correct?When the first DNA results were negative, some of the men she had sex with were tested and one of them was matched to the DNA. When did the accuser provide the identities of the men with whom she had had sex to DPD? They must have had at least one more conversation with her. I would like to see some info. on this.Thanks for your work.

Professor KCThe female dancer(friend of accuser-FOA) was on Good Morning america. She is starting to vasilate and has new claims. The most recent post wanted to know the accuser's statements and a timeline may be worth the effort. Which reports have been turned over to the Defense?It seems there is more than we all thought here. The FOA may well have been part of an original plot to extort the Duke Lax players. The FOA seems like she backed out at some point but doesn't want to give any evidence of her own involvement. Nifong and Co. never asked her any questions after her initial verbal statement. that was very limited. Does the Defense have that staement?The backwater cops and pros. from Durham are really pathetic.another point is the "in camera" review of the Victim's medical reports. Does the Defense have any of this information? This entire case has me stumped by the handling of same. I would think a rookie without any training would be smart enough to interview an eyewitness to a gang rape????? let alone wait over 7 months. I said before, all parties are waiting on this election and for their own reasons.

Thanks very much for the feedback; I agree with you that, of the five rule violations, 3.3 is the weakest.

I listed three ways I thought Nifong violated 3.3(a)1: (1) no first-name aliases or uniform #s at party; (2) no mention of lineups; (3) promise about negative DNA tests.

I have confirmed through my own reporting that (1) is true. There's nothing--anywhere--to suggest that first-name aliases or numbers were used at the party--either statements of the captains, police reports of various types, nothing at all. Kim Roberts' statement, in fact, says this wasn't the case--that Dan Flannery and Dave Evans talked with her, and she calls them Dan and Dave. Oddly, the one news article that recognized this fact was the blatantly pro-prosecution NYT piece--which then ignored its ramifications.

This was the key justification made for the 3-23 NTO motion. From everything I've been able to determine, it was--to put it bluntly--fraudulent.

As for (2), it's possible that the judge would have granted the motion even if (2) had been included. But if (2) had been included along with an admission that the prosecution had no evidence of first-name aliases, I don't see how the order could have been granted. I agree with you that (2) alone wouldn't have constituted a "false statement" of omission (a very high standard) on its own. But coupled with (1), I think it reaches this point.

As for (3), I agree your interpretation could well be correct. I know, too, that "lawyers have a certain amount of leeway to make blustery statements and bold conclusions." I admit that I included (3) by inference, and it's the weakest portion of the post. You're probably right I should have simply omitted it. I included it on the basis of the "knowingly false" requirement. From everything we've witnessed in this case, Nifong was going to get indictments one way or the other. So while he made that promise in the motion, there's no evidence he planned to live up to it if facts didn't go his way.

It looks like the False Accuser had this false accusaton planned before she even showed up at the party. Maybe her boyfriend/driver and her were in on it together. The police should be asking him alot of questions now. It was his DNA found in her and he took her to the party and spent time with her prior to the party.

I just looked at the original prosecution application for the DNA samples (if you go to kirk osborn's web site, the applicable part is on pg 16 of the PDF for the May 1 motion to supress). In the application the prosecution specifically states that the accuser told them she believed aliases were used. It also states that Dan F. Admitted to police that he used an alias to book the dancers. However, the prosecution never asserts that aliases and numbers were used as a matter of fact. Rather, the prosecution states: "It is the States [sic] belief the suspects used each others [sic] names to disguise their identities ....". While the prosecution doesn't seem to understand apostrophes, they do seem to understand Rule 3.3(a) - they are very careful to qualify the false names theory as a "belief" rather than as a fact. That qualifier is probably enough to guarantee compliance with 3.3(a).

Nifong "finally" interviews the accuser -- after the November election -- only to find, to his great shock and dismay, that she is less than credible... and furthermore, the facts do not support prosecution....

huesofblue...three days prior to that assertion on the NTO, the police were still operating under the assumption that real names were used as evidenced by the line ups that targeted suspects named x,y and z. If the accuser gave no statement to police (as it appears she did not) between the second lineup aiming for x,y and z and the NTO request that states she reportedly said alias names were used, how could she possibly have made the assertion that is ascribed to her? On March 21 they seek suspects named x,y and z based on her initial statements. Three days later, without any evident statement to the contrary from her, they appear to have changed her claim from x,y,z to aliases.

I don't know, it doesn't seem that weird to me. Even if the AV had originally said, "they might not have been using their real names," you can't really fault the police for following up on the Adam, Matt Bret thing first. I think it's pprobably where most cops would start. When the AV couldn't identify any players with those names in the first two lineups, they went to plan B.I might be totally wrong, but I kind of doubt that the more junior atty that actually filed the motion would just mske the ststement up out of thin air. It wouldn't be totally unprecedented, but it would be out of context with the rest of the motion.

The reason DPD came up with fake name theory is because this accuser could not pick Matt, Adam, or Brett from two line ups on March 16th and March 21st. And what does she do on April 4th? She pickes a Matt as one of the suspects. Of course Gottlieb ignores her pick of Matt.

A note re Joan Foster's discussion of Grant Farrad's remarks--You may be interested to know that Mr. Farrad is in the Literature Department at Duke, not the English Department. Though I may well be oversimplifying here, my impression (based on looking at course listings, faculty credentials, etc. as the parent of a 2004 Duke graduate [who majored in English] and a member of the class of 2008) is that English Department faculty focus primarily on the texts they are teaching, along with secondary criticism and historical context, while Literature Department faculty focus primarily on critical theories of literature and culture including Marxist, feminist, deconstructionist, and other (often highly political) schools of thought--the theories/world views are paramount, and the texts to which they apply are secondary--primarily vehicles to support and illustrate the theories. I am not familiar with Mr. Farrad or his scholarship, but certainly his approach to the Duke lacrosse case fits this model to a T.

In Flannery's statement, he said that he booked the dancers under the name "Dan Flannagan" rather than "Dan Flannery."

I have been told by reliable sources that noplace in the Flannery statement, or in the statement of the other captains, is there any mention of first-name aliases. Even more damning, Kim Roberts' statement, wholly inadvertently (I think) makes it clear they players didn't use aliases. That statement was made on the 22nd, one day before the NTO motion. The accuser never was told the last name of any of the players during her time at the house.

We also know now (as we didn't at the time) that police did a lineup on March 16-21 under the assumption that the players didn't use aliases. So what appears to have occurred is Gottlieb did a lineup, the accuser couldn't name anyone, and so Nifong's office used the fact that players called each other by jersey numbers in E-mails (the captains--foolishly--gave the police access to their email account passwords on 3-16) and Flannery's statement to claim the players used first-name aliases and jersey numbers at the party, even though no evidence existed to sustain the fact.

The question becomes: when did the accuser come to "believe" that first-name aliases were used? She didn't believe it on the 16th--in fact, she believed just the opposite. There's no record of her stating this to police on the 21st. And she had no other contact with police.

Thanks for putting your ACLU comment online. You delivered it very well and I was disappointed the comments session ran (and ranted, in some cases) so long. My husband and I would have liked to thank you in person.

Nifong "finally" interviews the accuser -- after the November election -- only to find, to his great shock and dismay, that she is less than credible... and furthermore, the facts do not support prosecution....

Oppps.... nevermind.

Nope (as Kim would say). Won't be that way. She will be "psychologically unable" to testify. The AA community (and Duke's racist professors, the liberal media, and black leaders/organizations) will still have their agenda's furthered and be given blanket freedom to spew their propaganda. Nifong keeps his job and pension. Three innocent boys who did nothing more than a million college students do everyday in this country (of all races) face ruined lives because they will NEVER be declared innocent.

Those who argue that there is any race, women's, or sex issues in this case will never realize how transparent they are to any thinking person. If all allegations are false, and Kim cast the first epithet, then there is simply nothing there. When will someone who garners national attention have the balls to say so?

I enjoy reading your blog tremendously. But even you may have missed this one, though generally you are spot on.

Nifong's stupidity in this case is boundless. I am a Maryland attorney, let me tell you what he has done, and where the train is heading through my eyes.

Nifong has appointed himself lead investigator. What's the big deal?

He's made himself a necessary witness for the Defense AND the Prosecution. Thus, the questions asked about his evidence collecting, and his pathetic denials should become a bit more apparent now. The first thing I would do is call him to the stand and roast him over an open flame in front of a Jury.

In Maryland, it is called Maryland Rules of Professional Conduct 3.7. He has automatically disqualified himself as an attorney in this case, and cannot represent the prosecution. I am fairly sure NC has a similar provision in its Rules.

I see the problem. So when did the adam / dan story first come out? Is the application for the DNA testing the first mention of it?

The lengths to which this prosecutor is willing to go to come up with something, anything, are really amazing. At every turn the evdence contradicts him, but he just keeps on truckin. But what's amazing is that he seems to have so many people on board with him at the DA's office and on the police force. It's twisted, but if this thing does go to trial, I really will be curious to see just how he chooses to deal with this nightmare case.

The N.C. State Bar has a large public file on Mr. Nifong. Despite the weakness on Rule 3.3 cited above, the rest of the prosecutorial misconduct charges are strong, and I expect to see a sharp rebuke, and possibly something beyond censure, from the State Bar, our lawyer regulator down here in N.C.

I would love to see that file. I suspect Nifong is so in shock, he's in denial about it, and his case.

Lis Wiehl is a moron. On O'Reilly once I heard him mention "E Pluribus Unum", and she responded that she had never heard of it and did not know what it meant. Almost beyond comprehension how she could have that much education yet still be so ignorant of fundamentals.

just curious to hear more about that file on Nifong. Is that composed of all the official complaints the State Bar has received? I know they will wait for the disposition of the case to be complete before proceeding with any action, but could you elaborate on how that would occur?Also there are rumors that the FBI and Dept. of Justice are watching the case closely and may take action as well. (I have NO confirmation, but certainly hope it's true). Anybody hear anything about that?

This whole story has reaked of Tawana Brawley from the beginning... One of Reverend Al's shining moments... no evidence, media spotlight... we'll see if the powers that be can get the facts straight on this one too...

Excellent write-up, thank you for the in-depth analysis. This case is deeply disturbing- one wonders what would have happened if these boys had not been able to afford good lawyers, or if the media had not taken up the story. What is the just punishment for a man who seeks to prosecute innocent men for politican advantage?

I’ve read a bunch on the Duke case. I have numerous interests in that case as I am from the same home town as Colin and moved upon graduation from high school to Salisbury NC about 90 minutes south of Duke. Some of the questions I have are as follows

1) I’ve heard a great deal about the accuser and a history with the law. Does anybody think that she will be charged with anything? (false report or worse)

2) Does anybody think that the police, especially this gent Gottleib, will be charged with anything since they appear to be strong-arming the defense folks…the cab driver or not taking complete notes of the crime etc.

3) Today February 19, 2007 is the first I am hearing about the cabbie going to court over some old warrent and charges. can anybody point me in the right direction to find out more about the trial and its outcome. I’m told the police lied in the trial and contradicted surveilance tape.

4) Lastly, If Nifong gets off on the ethics charges with the NC Bar, does that make it impossible to sue him??

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I am from Higgins Beach, in Scarborough, Maine, six miles south of Portland. After spending five years as track announcer at Scarborough Downs, I left to study fulltime in graduate school, where my advisor was Akira Iriye. I have a B.A. and Ph.D. from Harvard, and an M.A. from the University of Chicago. At Brooklyn College and the CUNY Graduate Center, I teach classes in 20th century US political, constitutional, and diplomatic history; in 2007-8, I was Fulbright Distinguished Chair for the Humanities at Tel Aviv University.

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"From the Scottsboro Boys to Clarence Gideon, some of the most memorable legal narratives have been tales of the wrongly accused. Now “Until Proven Innocent,” a new book about the false allegations of rape against three Duke lacrosse players, can join these galvanizing cautionary tales . . , Taylor and Johnson have made a gripping contribution to the literature of the wrongly accused. They remind us of the importance of constitutional checks on prosecutorial abuse. And they emphasize the lesson that Duke callously advised its own students to ignore: if you’re unjustly suspected of any crime, immediately call the best lawyer you can afford."--Jeffrey Rosen, New York Times Book Review